Updated: Aug 23, 2022
I was working on my next blog post about measures around sex and research findings and planned on posting it today, then the American legal system went and lost its goddamned mind – again.
Last week in Oklahoma, a judge made a decision that, “Forcible sodomy cannot occur where a victim is so intoxicated as to be completely unconscious at the time of the sexual act of oral copulation.” Ummmm…. bullshit. He based his reasoning on the the argument that the 17 year old boy who forced oral sex on a 16 year old girl claimed she agreed to it while incredibly intoxicated. The girl reported no memory of consenting and passed out drunk before the encounter.
This part is simple folks– if someone is so drunk they pass out, they can’t possibly consent to sex. They simply do not have the capacity to make a reasonable and informed decision. Why? Because they are passed out drunk. Its really simple. If I am too drunk to speak or keep my eyes open, I can’t possibly consent. Period.
Then, a friend of mine posted a note from the Medford, OR police department who found that she did not have the basis of a rape complaint because she was asleep when the assault began. The denial of the basis for rape is based on the fact that she did not tell her attacker not to stick his dick in her mouth when she was asleep. WTF????
I am confounded by these ideas of what constitutes consent legally. So, I live with two men, neither of whom I want to have sex with. Am I supposed to tell them each night before bed, “Please don’t fuck me in my sleep?” Are we going to change the end of the Walton’s from “Good Night Jonboy,” to “Please don’t fuck me in my sleep Jonboy?”
Are we going to change the end of the Walton’s from “Good Night, Jonboy,” to “Please don’t fuck me in my sleep, Jonboy?”
The American legal system has had issues understanding consent for a while. Three district courts in the U.S. have ruled that nonconsensual upskirt photos that are posted on the internet without the person’s consent are protected by “freedom of speech.” In the U.S. you can legally take a photo of someone’s private parts without them knowing, post it on the Internet without getting their consent and it is your legal right. But god forbid I show a nip voluntarily on Facebook!
Look, consent is not that hard to understand. A person has to be able to understand the situation and make a rational decision to engage in a behavior for it to be consensual. These conditions cannot be met if a person is intoxicated (drunk, high, or other), if they are asleep, if they are drugged, if they are placed in a dangerous situation and given a choice of doing something they would never agree too unless their life was in danger, or if they are in sub space. You also have to be aware of the action to consent.
The legal system seems to have a hard time understanding these very basic concepts. I am not using semantics. I am not using advanced logic. I am not using an arcane or academic understand or rarely used legal principles. This is common sense. I need to know what you want to do and be in a frame of mind to agree to it. Nothing more than that.
If, however, I am unaware of an action or if I am in an altered state of mind, I can’t consent. Its simple– unless you are in the legal profession and want to promote rape. Because that is what this is. Legally authorizing nonconsensual sexual behavior is making rape legal. Police departments and courts are working together to make rape in many forms legal.
The Supreme Court has already decided that being raped by your brothers in arms while serving in the military is a reasonable risk of the job. District courts will let other people secretly photograph your genitals and post them for all the world to see as the other person’s constitutional right – your right to privacy be damned. Now, if I don’t clearly state before bed I don’t want a dick in my mouth, then I should accept any dick that shows up.
Kinky people understand the basics of consent. We talk about it. We clarify it. We incorporate it into our play and our porn. We need to ban together and push out this kink practice to everyone. Here is where kink is far superior than the general culture.
Dungeon monitors make sure no phones are taken out in play spaces to prevent even accidental photography. Most professional kink porn has a section of the film where the submissive talks about what she is consenting to for the film. If porn producers can get the basics of consent, a lawyer should be able to understand it as well.
Until we instill these basic concepts of consent into our laws, if I wake up with your dick in my mouth and we haven’t agreed to it prior to then, you are consenting to me biting that little thing off.